A Wednesday court ruling called for an end to the 18-year-old "Don't Ask, Don't Tell" policy on open homosexuality in the military. DoD photo

Legion: Appeal Ninth Circuit ruling on DADT

The American Legion

Jul 07, 2011Jul 07, 2011

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American Legion National Commander Jimmie L. Foster is calling on the Justice Department to appeal the July 6 ruling by the Ninth Circuit Court of Appeals that requires the U.S. military to allow gays to serve openly - thus ending the "don't ask, don't tell" (DADT) policy that has been in effect for 18 years.

"Micro-managing military policies by judicial fiat ignores the authority of our military leadership and circumvents the military's own Uniform Code of Military Justice," Foster said. "If we as a nation allow judges to institute military policy, we diminish the roles of the Secretary of Defense, the Joint Chiefs of Staff, Congress and the constitutionally mandated role of the nation's commander-in-chief. Simply put, the military's role is to fight and win our nation's wars. Judges lack the expertise on how to best do this."

Foster added that The American Legion has been voicing its concerns about the repeal of DADT for the last two years. "We were told the military was going to conduct an honest survey of how those who matter most - the men and women in uniform - feel about the issue," Foster said. "It was later reported that the numbers were manipulated in media reports that falsely indicated that 70 percent of the military members surveyed had no concern about its repeal.

"(Former) Secretary of Defense Robert Gates was so bothered by unauthorized and premature leaks of the report that he ordered an investigation by DoD's Inspector General. The U.S. Army and U.S. Marine Corps have been bearing the brunt of the combat, yet last year both of their service chiefs testified in favor of keeping DADT. In fact, we agree with Marine Gen. James Amos, who testified that the policy should not be based on ‘a social thing. It's combat effectiveness.'"

Yesterday's decision reinstated an earlier injunction on DADT by a lower court, which was later reversed. The Wall Street Journal pointed out that the latest decision "creates the possibility that recruiting rules could shift back and forth for weeks to come."

"This lack of consistency and expertise by the courts makes it very difficult to operate a first-rate military, much less fight two wars," Foster said. "This just underscores the rationale to give great leeway for the military to decide these issues in an environment devoid of politics and social considerations. The American Legion urges our commander-in-chief to appeal the Ninth Circuit decision, which undercuts the ability of our military leaders to use their best judgment in deciding what enhances - and what diminishes - military effectiveness."

If the Justice Department appeals and prevails, DoD officials will have to certify that military readiness won't be adversely affected by repeal of DADT. "We would urge DoD to resist political pressure and withhold certification until the issues of military readiness and unit cohesion are studied more honestly and thoroughly, " Foster said.